Opinion
Record No. 2371-93-4
Decided: November 22, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
R. Ferrell Newman (Glenn S. Phelps; Thompson, Smithers, Newman Wade, on briefs), for appellants.
John J. Condliffe; Brenda J. Gilliam (Howard Howard, on brief), for appellee.
Present: Judges Barrow, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Piedmont Aviation, Inc. and Fidelity Casualty Co. of New York (Piedmont) appeal the decision of the Virginia Workers' Compensation Commission awarding Donna Fowler temporary total disability benefits from May 22, 1991 to September 30, 1992 and from February 12, 1993. Piedmont contends that no credible evidence supports the commission's finding that the carrier is estopped from asserting the time limitation of Code Sec. 65.2-708. We find no error and affirm.
Piedmont employed Fowler as a flight attendant. On May 21, 1986, Fowler sustained a compensable injury when her arm was accidentally closed in an airplane door by an off-board employee. Based on awards by the commission, she received compensation benefits for temporary total work incapacity from July 18, 1987 to October 14, 1988 and from May 31, 1990 to February 12, 1991.
Piedmont paid Fowler additional temporary total disability benefits from May 22, 1991 to October 8, 1992, but no award of these benefits was entered. On October 7, 1992, the carrier mailed to Fowler for her signature a supplemental memorandum of agreement and an agreed statement of facts, relating to the disability from May 22, 1991 to October 8, 1992.
Fowler resumed work in October, 1992 but her symptoms returned. In December, 1992, her doctor advised her to give up her position as a flight attendant if she continued to have pain. Piedmont paid her disability benefits from December 30, 1992 to February 12, 1993. On February 12, 1993, the carrier discontinued payment of benefits. On March 10, 1993, it informed Fowler that because she had never returned the documents reflecting the disability from May 22, 1991 to September 30, 1992, her claim was barred.
On March 18, 1993, Fowler applied for benefits, alleging a change in condition. The deputy commissioner found this claim barred by Code Sec. 65.2-708, which states, in part, that "no such review [for a change in condition] shall be made after twenty-four months from the last day for which compensation was paid, pursuant to an award under this title."
The full commission found that Fowler had signed and returned to the carrier the documents that it had sent her on October 7, 1992. It held that the carrier was estopped from asserting the time limitation of Code Sec. 65.2-708. It awarded Fowler temporary total disability benefits from May 22, 1991 through September 30, 1992 and from February 12, 1993 and continuing.
Piedmont first contends that the record does not support the commission's finding that Fowler signed the memorandum of agreement and agreed statement of facts and mailed them back to the carrier. We disagree.
We cannot disturb the commission's finding if it is supported by "credible evidence." Goodyear Tire and Rubber Co. v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312 (1979). The record contains an uncontradicted affidavit that Fowler mailed the documents by United States Postal Mail, first class, to the carrier's address. Piedmont produced no evidence that the carrier did not receive the documents. Uncontradicted evidence that the memorandum of agreement and agreed statement of facts were mailed is presumptive of delivery. Frieden v. Cluett, Peabody Co., 142 Va. 738, 747, 128 S.E. 61, 64 (1925).
Piedmont next contends that it is not estopped from pleading Code Sec. 65.2-708 statute of limitations bar because Fowler has shown no fault on its part that caused the document to go astray and not to be properly filed.
Where it is alleged that an employer should be estopped from reliance on the statute of limitations, the Supreme Court has looked to whether there is "evidence of fraud or concealment by the employer or its carrier or that they committed any act which was reasonably calculated to induce or did in fact induce [the employee] to refrain from timely filing his claim with the Industrial Commission."
Nabisco Brands, Inc. v. Jones, 12 Va. App. 1028, 1032, 407 S.E.2d 919, 921 (1991). Piedmont argues that neither it nor its carrier committed any fraud or concealment, nor did they commit any act calculated to induce Fowler not to file her claim timely.
"In the absence of fraud, elements necessary to establish an equitable estoppel are a representation, reliance, a change in position, and detriment." Id. at 1032, 407 S.E.2d at 921. Piedmont argues that the carrier made to Fowler no representation upon which she relied detrimentally. It argues that the carrier merely prepared the documents, forwarded them to Fowler, and stated that upon their return, it would forward the documents to the commission.
The employer and carrier accepted Fowler's disability from May 22, 1991 to September 30, 1992 and paid benefits to her, although an award had not been entered for that period. The carrier prepared the necessary documentation and mailed the documents to Fowler for her signature, assuring her that it would file them when she returned them. Fowler signed the documents and mailed them back.
Fowler need not show that the representations by the carrier were false or were intended to induce reliance. She need prove only that "the representation . . . did in fact induce the [employee] to refrain from filing." Cibula v. Allied Fibers Plastic, 14 Va. App. 319, 325, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993). By mailing the documents to Fowler for her signature and stating that they would be forwarded to the commission upon return, the carrier represented that an award would be entered. This was consistent with the parties' prior dealings on the same claim. Fowler relied on this representation. She changed her position detrimentally by not filing her claim.
Fowler contends that Piedmont was barred by the doctrine of imposition from claiming that no benefits should be awarded for the period of May 31, 1991 to October 8, 1992. "[I]mposition . . . empowers the commission in appropriate cases to render decisions based on justice shown by the total circumstances even though no fraud, mistake or concealment has been shown." Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992). This position was not asserted before the commission and is barred by Rule 5A:18.
The judgment of the commission is affirmed.
Affirmed.